Logan v. Smith

¶1This is an application to assume original jurisdiction and a petition for a writ of prohibition to prevent the maternal grandmother from intervening in a divorce proceeding by requesting, on her own motion, to modify custody of the children of the parties.

¶2Allison Logan and Leonard David Logan were divorced on May 12, 1978. Custody of the parties’ two children was awarded to Allison Logan. Leonard David Logan has had actual physical custody of the minor children during the past summer. The maternal grandparent, Jo L. Day, filed a motion to modify on August 24, 1979, requesting that she be granted custody of the two minors, alleging that both parents were unfit and not proper persons to have custody of the children. The parents of the children were ordered to appear and show cause why immediate custody should not be granted to the grandmother.

¶3At the time of the hearing, the father filed a special demurrer, alleging that the grandmother did not have legal standing to file the motion to modify and bring the action in the divorce case. The demurrer was sustained. However, an oral motion to intervene for the purpose of filing and presenting the motion to modify was sustained and the grandmother was permitted to intervene for the purpose of presenting her motion.

¶4I

¶5As a general rule, a third person cannot intervene in a divorce suit, but third persons whose property interests may be adversely affected may intervene to protect their rights.1 The Oklahoma Statute, 12 O.S.1971 § 237,2 concerning intervention, provides that interested persons may be made parties when in an action for the recovery of real or personal property any person having an interest in the property applies to be made a party.

¶6Although either party to a divorce may make the application for modification of the decree or order to modify custody, the authorities differ as to whether a third person may intervene. It has been held that third persons may intervene where the parent to whom custody of the children was awarded has become unfit for the trust.3 Under other authorities, third persons cannot intervene in a proceeding to modify custody order, nor may they file a motion to modify *649it.4 A third person has no standing in court to request a modification where the statute limits the rights of the parties to the divorce action or to a party having the care, custody and control of the child.

¶7This is a case of first impression in this jurisdiction. Price v. Price, 573 P.2d 251 (Okl.1978) is cited by the petitioner for the premise that, before parents’ legal custody of children may be interfered with, it must be affirmatively shown that children come within the scope of the Juvenile Code, 10 O.S.1971 § 1101, as dependent and neglected children. It is the petitioner’s contention that a third party, including a grandparent, who is not a party to the divorce action cannot attempt to obtain custody of minor children through the divorce suit and that the only remedy is through the juvenile statutes and the juvenile courts. We agree:

¶8Zachary v. Zachary, 155 Or. 346, 63 P.2d 1080, 1081 (1937) involved a similar factual situation. In this ease, the mother was awarded custody of the child, and the paternal grandmother sought custody by intervention by asking that the custody be modified. The Oregon Statute provides that at any time after the decree is entered, the court, upon the motion of either party, shall have the power to set aside, alter or modify so much of the decree as may provide for the appointment of trustees for the care and custody of minor children. The Oklahoma Statute, 12 O.S.Supp.1977 § 1277, provides that if there are children, the court shall make provisions for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect whenever circumstances render such change proper either before or after final judgment.

¶9In Zacharythe Oregon Court held that the grandmother was not a party to the divorce suit and, therefore, had no standing in court to request a modification of the divorce decree; and, further, that there was nothing in the motion to show that the minor child was a dependent, delinquent or neglected child. It held that, because the motion was not filed under the Dependent and Neglected Children’s Act, it would not be considered. The court observed that had the father supported her motion then it might have been considered as a motion by the father. The Oregon Statute is dissimilar because it provides that upon the motion of either party the court has the power to modify custody, and the Oklahoma Statute provides that the court may do so on its own motion.5 In this instance, neither parent is requesting a change in custody nor a modification of the decree.

¶10There is no authority, statutory or otherwise, in this state which authorizes a third party to file a petition for modification of the court’s judgment relative to the care and custody of children in a divorce proceeding.

¶11The respondent asserts that because 10 O.S.Supp.1975 § 56 entitles a grandparent to enforce visitation rights, it must naturally follow that a grandparent may properly file a motion to modify custody. This is not the case. In LeCrone v. LeCrone, 50 OBJ 1421 (June 26, 1979) it was determined *650that 12 O.S.Supp.1977 § 1277 controls insofar as child support provisions are concerned over the provisions of 10 O.S.Supp. 1975 § 4 concerning child support. The LeCrone rationale is applicable in this instance because § 1277 also relates to modification of custody.

¶12The Juvenile Code, 10 O.S.1971 § 1101, et seq., provides a method whereby a child who is ill-treated or whose health or morals are in danger by cruel treatment, neglect, immorality, or gross misconduct of its parents, may be protected. Until the Legislature directs otherwise, this is the method which should have been followed.

¶13ORIGINAL JURISDICTION ASSUMED.

¶14WRIT OF PROHIBITION GRANTED.